Purvis ex rel. Purvis v. Whitaker, 238 N.C. 262 (1953)

Sept. 23, 1953 · Supreme Court of North Carolina

238 N.C. 262

LAURA MAE PURVIS and WILLIE EARL PURVIS, Minor, by His Next Friend, LAURA MAE PURVIS, v. EARL WHITAKER and Wife, CARTHENIE WHITAKER; R. T. WHITAKER and H. L. SWAIN, Trustee, and H. D. BATEMAN, Trustee.

(Filed 23 September, 1953.)

Appeal and Error § 40f—

An appeal will not lie from tbe denial of a motion to strike made after demurrer bas been filed and overruled. G.S. 1-153.

Appeal by defendants, other than H. D. Bateman, Trustee, from Parher, J., March Term, 1953, of Martin-. Affirmed.

Tbis was an action to set aside certain conveyances executed by defendants Earl Whitaker a,nd wife and R. T. Whitaker, alleged to have been made in fraud of creditors. G.S. 39-15.

Demurrer of H. D. Bateman, Trustee, was sustained and action dismissed as to him. Tbe remaining defendants moved to strike certain portions of tbe complaint. From judgment denying tbe motion tbe defendants other than Bateman, Trustee, appealed.

Robt. H. Cowen, Elbert S. Peel, and Lemuel H. Davis for plaintiffs, appellees.

H. L. Swain and Leroy Scott for defendants, appellants.

Per Curiam.

An examination of tbe complaint in connection with tbe portions thereof sought to be stricken leads to tbe conclusion that tbe ruling of tbe trial judge should be upheld. Tbe allegations complained of were relevant and tended to set forth facts material to a proper statement of plaintiffs’ cause of action. Garrett v. Rose, 236 N.C. 299, 72 S.E. 2d 843; Ledford v. Transportation Co., 237 N.C. 317, 74 S.E. 2d 653. Furthermore, defendants’ motion to strike was filed after their demurrer bad been overruled. G.S. 1-153. Parrish v. R. R., 221 N.C. 292, 20 S.E. 2d 299. Appellees’ motion to dismiss tbe appeal on tbis ground is allowed.

Appeal dismissed.